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Strategies for Proving that Chronic Pain is Physical
Chronic pain cases are among the toughest assignments facing plaintiff’s personal injury counsel. I hope that the strategies which follow will help you obtain justice for the victims of chronic pain. These victims will need all the courage, energy and forensic skill you can muster if they are to get the compensation they deserve.
What is Chronic Pain?
Chronic pain has been defined as pain which has persisted for six months or more from the date of onset.1
According to the Director of the Behavioural Health Clinic in Toronto, Dr. David Corey, chronic pain can be categorized into three groupings according to apparent causation:
- Chronic pain with an extant disease state or trauma where the amount of pain is consistent with the identified organic pathology. This is exemplified by rheumatoid arthritis and nerve damage;
- Chronic pain following disease or injury where the resulting pain and disability is greater than expected on the basis of the identified organic pathology. This is often seen in degenerative disc disease and following soft tissue damage;
- Chronic pain with no identified organic pathology with or without an initiating trauma. This is most often seen in fibrositis syndrome and is frequently associated with depressed states.2
In this article I recommend strategies for proving that the type of chronic pain described in categories 2 and 3 emanating from the neck and back is physical, or to put it more accurately, emanates from a continuing physical injury. As lawyers we see such chronic pain assessed in a variety of ways depending on the assessor’s bias. If the assessor favours the victim the source of the pain is described as soft tissue injury of indefinite duration, or as fibromyalgia or fibrositis, or myofascial pain, or chronic pain syndrome or mechanical back pain. If the assessor has a defence bias, we see the etiology of such pain labelled as inorganic, somatic, functional, lacking any physiological basis, behavioural and so on.
You will need a basic familiarity with the anatomy of the spine. The spinal column is divided into five parts: seven cervical vertebrae, twelve thoracic vertebrae, five lumbar vertebrae, the sacrum, and the coccyx. The last two parts are made up of several vertebrae fused together which form solid bone. Each vertebra is given an initial and a number, such as C1 meaning the first cervical vertebra, T1 (thoracic) or L1 (lumbar). An intervertebral disc is a structure located between two vertebrae. It functions as a shock absorber and is kept in place by vertebral ligaments known as the anterior longitudinal ligament and the posterior longitudinal ligament. The disc has an outer surface called the annulus fibrosus and an internal jellylike material known as the nucleus pulposus. Thirty-one pairs of nerves are attached to the spinal cord: eight cervical, twelve thoracic, five lumbar, and five sacral pairs, and one coccygeal pair. Because the C1 nerve root exits above the C1 vertebra and the C8 root exits below the C7 vertebra, there are eight cervical nerve roots, but only seven vertebrae. Each cervical nerve root supplies impulses to a specific area of the body along a path that is known as a dermatome.
Strategy #1 Case Selection: Early and Vigorous Review of Pre-Morbid Profile
I cannot over-emphasize the importance of effective case selection. I find it very difficult to say “No” to an accident victim who asks for and genuinely deserves help, so I am aware of how difficult it will be for you as a caring plaintiff’s lawyer to take this advice. But we cannot take on the role of apologist for the system. In the end we do the accident victim no favour by getting him or her into a lawsuit that cannot be won. Just as importantly, because these cases are very expensive to try, you run the risk of substantial financial loss by failing to select cases effectively.
Some chronic pain cases will make it; others will not. The challenge you and I face is to only take on the cases which are most likely to succeed and to then turn them into winners.
The best predictor which I know of is what we call in our office the pre-morbid profile. How would you react as a trial judge to the chronic pain claim of a plaintiff who had no significant emotional problems prior to the trauma, who was always successful in every aspect of life, who has always been productive and high functioning, and who has every reason to recover from the trauma and get on with life? On the other hand, how would you react to a plaintiff who has a history of somatic complaints, who has abused drugs or alcohol, and who has a history of failures and unemployment prior to the trauma?
Much of the literature indicates that victims who develop chronic pain are pre-disposed in some way to do so. So the ideal pre-morbid profile is probably that of a person who was just a little vulnerable and just a little pre-disposed to chronic pain, but who was in spite of this pre-disposition always high functioning. The next best profile would be that of a person who has a squeaky clean history and was high functioning.
Until you have confidence that the pre-morbid profile is that of a winner, do not accept the case except for investigation. Agree to investigate, and advise the client that you will not decide whether to accept the case until your investigation is complete.
How do you assemble a pre-morbid profile? Unless you are confident that your client’s history is relatively clean (and I rarely accept a client’s assurances), obtain all pre-morbid clinical notes and records and hospital records (CNR’s) for as far back into the client’s life as possible. The CNR’s will tell you much more reliably than any medical reports what the client’s life has really been like, because the doctors probably do not have the information when they report. Also, develop an accurate employment and educational history by obtaining and reviewing all the client’s personnel and employment records. Collect records of any other accidents and Workers’ Compensation Board claims. Ensure you obtain applications for any other insurance or social assistance and if necessary obtain those files as well.
The other good predictors are evidence of a significant collision and immediate physical injury, impairment and pain. I will return to this topic later, but suffice it to say for now that if these ingredients are missing you should think twice before you accept the case.
You can be certain that competent defence counsel will keep digging until all of the pre-morbid information, the details of the collision and the immediate response is on the table. Defence counsel will obtain this information with the hope that it will reveal a history of emotional problems and psychosomatic physical complaints. Defence counsel will build on such a pre-morbid profile and evidence of minimal physical trauma to develop a strong case that chronic pain must be an emotional response, just like the emotional responses in the plaintiff’s history. As a plaintiff’s lawyer you must obtain this information for case selection. If the predictors are poor, you probably should not take the case on because it is not likely to be a winner.
Strategy # 2: Concentrate on the Collision (a) If Possible Dramatize the Force of the Impact
I used to make the mistake of treating discovery as unimportant in a case where liability was obviously against the defendant. Sometimes I skipped it altogether, but not any more. Because chronic pain cases are usually about neck and back injuries caused by rear-end collisions, liability is seldom in dispute. For this reason and because of a failure to appreciate the psychological importance of the collision at trial many counsel overlook the collision and miss an important opportunity.
It will make it much easier for the trier to accept and even expect that the plaintiff suffered a physical injury if you can show that the collision was of a type and force which the medical experts will say is likely to cause physical injury. Such an opinion must be elicited from the medical experts, but there is no basis for such opinions unless evidence is led concerning the degree of damage to the vehicles, the speed of the impact, the direction of the forces and the movement of the plaintiff within the passenger compartment.
As soon as possible conduct telephone interviews of the investigating police to make sure the officer does not forget all the indicators of a significant collision. Write to the officer to confirm the information. Obtain photographs of the damage from your client’s insurer, an investigator of your own and the police. Seek production of the defendant’s insurer’s damage documentation and photographs. Evidence that either vehicle was written off is very powerful even if the vehicle was a junker and the damage was minimal. Was the seat bent, moved forward or broken from its moorings? What did the head rest look like and was it raised or too low to be of any use? Were there objects in the passenger compartment which flew about on impact? Was the defendant injured? If the defendant was physically and permanently injured it becomes easier to accept emotionally that the defendant caused the plaintiff similar damage. Were the vehicles driven or towed away from the scene? All this evidence is important in the assessment of the forces on the plaintiff.
This sort of detail concerning the degree of force can make all the difference in this sort of case both with respect to the threshold and the size of the damages awarded. It has a lot to do with tapping into the belief system of the trier of fact and ensuring that the common sense and belief system of the trier are consistent with what you are asking the trier to find. The more serious the impact and the greater the damage to the vehicles, the more likely it is that the injuries will be found to be physical. So, thanks to the Bill 68 threshold the details of the accident have become very important again in a rear-end collision.
You may require evidence from an accident reconstruction engineer who will take the physical damage and calculate the speed of the defendant’s vehicle. You might also require a biomechanical engineer, if the medical evidence will not suffice, to establish that at the proven speed a physical injury is likely to occur. Without the detail concerning the damage to the vehicle none of this opinion evidence has a foundation.
Finally, use the demonstrative evidence which you obtain early in the trial and as dramatically as possible. For example, instead of filing a copy of the damage appraisals, blow them up onto the wall of the courtroom with an overhead projector. Instead of filing small photographs of the vehicles, get slides made and show them on the wall too. Furthermore, each witness who can be asked to comment on the severity of the collision presents an opportunity you can not afford to miss. Every time the judge and jury see these exhibits the more real the forces of the impact become and the more believable a chronic physical injury will be.
(b) In Minor Impacts, Employ Expert Evidence to Overcome Belief System of Trier3
If the collision is a powerful one the trier will expect that physical injury resulted. It is equally true if the collision is minor and produced negligible physical damage to the vehicles that the trier will expect that no physical injury would be likely. You must expect that belief system. You must understand the mechanism of the collision and call credible expert evidence to replace the belief system with a pre-disposition in favour of your client. It is a process of education.
The British Columbia Trial Lawyers magazine Verdict published an excellent analysis of “minimal damage impact” cases. The author, an engineer, points out that the phrase “minimal damage” is a misnomer. Some vehicles are stiff. Some vehicles have energy absorbing bumpers. These bumper systems are designed to allow many vehicles to experience low level impacts without exhibiting any permanent vehicle body or systems damage.
When discussing occupants, the author explains, reference is made to the “G forces” acting on the occupant. The G force is a measure of acceleration forces. In rear-end collisions it is the rapid acceleration of the target vehicle which causes the driver’s whiplash. First the vehicle is accelerated. Due to inertia, the human body tries to remain stationary. This causes the seat back to compress until the energy storage limit of the material is met. The body is then rapidly accelerated with a rate greater than the vehicle. If the headrest is so low or so poorly designed that it provides poor support, then the head lags even further behind the shoulders in the extension phase. Because the muscles and ligaments become stretched behind their normal limit, they will then want to return the head forward and will accelerate it forward. The head will catch up and pass the torso, continuing in a forward direction. The forward movement of the head will again force the soft tissues to extend beyond normal tolerance to slow the head down to the velocity of the shoulders in the flexion phase. A properly functioning seat belt serves to increase the force in the flexion phase.
It is equally important to educate the trier to the magnification impact forces on the head and neck4. Furthermore researchers have demonstrated this phenomenon at speeds as low as 8 mpg5. At 8mpg the target vehicle experiences acceleration of 2g but the occupant experiences acceleration of 5g. It is just as important to lead evidence of research which has shown that modern vehicles can sustain a relatively high speed impact without significant structural damage. In the Verdict article the author notes that many factors affect the severity of injury in impacts with identical force. A hard seat back construction will tend to reduce loading compared to a seat back of more compressant material. Seat belt type and condition plays a role. The type of head rest and location relative to the head, pre-impact positioning of the plaintiff’s body and the plaintiff’s level of preparedness are also important.
This analysis is the stuff of experts. A good accident reconstruction engineer or a bio-mechanical engineer, or a medical doctor who is schooled in crash analysis, would be essential in such a case. The evidence of such a witness will be as credible as the evidence you are able to lead as a foundation for his or her opinion.
Strategy #3: Ensure that Case Development is Consistent with the Collision Evidence and the Pre-Morbid Profile
This strategy involves building on the information obtained as you pursue the two earlier strategies. It may sound simple, but in my experience you will not do it unless you make a conscious effort. The simplest way to implement this strategy is to prepare a case memorandum as soon as you possibly can which describes the plaintiff’s pre-morbid profile and the accident trauma. Provide that memorandum to the rehabilitation counsellor/case manager and the health care providers as early as you can. Give a copy to your client and instruct the client to tell the assessors that it is an outline made up by his or her lawyer on the client’s instructions and that the lawyer, not the client, wants the assessor to have it.
The objective is to obtain consistency of reporting by health care providers and assessors. As any experienced trial lawyer knows, nothing is worse than having several different versions of how an accident took place turning up in the medicals. Similarly it is devastating to the credibility of your experts for reports to be produced in the absence of an accurate history or pre-morbid profile. Defence lawyers love credibility problems in these cases, because medical opinions are largely based on the client’s subjective complaints. If doubts are cast on the credibility of your client because of apparently differing histories in medical reports, the defence is half way home.
This strategy, in a case which has been properly selected, will have the additional effect of leading assessors to the desired conclusion that the injury is a physical one, because (1) the collision was of a type one would expect to cause such an injury, (2) the plaintiff is of a type not to complain without a very real injury who would want to recover and return back to work, and (3) the plaintiff’s complaints of pain began immediately after the collision and have not abated. If the trier believes your client, the trier will probably like your client, and will be much more likely to want to help your client by finding that the chronic pain has a physical cause.
Strategy #4: Try Chronic Pain Threshold Cases with a Jury of Seven
The opening address to the jury is the single most powerful weapon in the lawyer’s arsenal. Properly employed in the right case the opening address is devastating.
The single most important strategy of all is to use the opportunity of an opening to a jury to influence the trial judge on the issue of the threshold. Think about it. In order to influence the jury you attempt to have the jury identify with you in a common quest for justice. You attempt to personalize the plaintiff as a deserving victim who the jury will be anxious to help. You seek to persuade the jury that the deserving plaintiff has done all that is humanly possible to rehabilitate and minimize the effects of the trauma. You seek to appear fair and reasonable. You seek to empower the jury to do justice. And perhaps most importantly, you tell a story and explain the physiology of injury in a manner which justifies the level of impairment and compensation you seek. Think of the trial judge as though he or she is sitting in a seventh chair in the jury box and craft your opening accordingly.
In the opening address to the jury you have an extraordinary opportunity to influence the trial judge on the threshold issue. This opportunity does not exist without a jury because a judge will neither be receptive to nor permit the same kind of opening unless the jury is there. The pressures on the judiciary are so severe that most trial judges want to hear only a bare outline so that he or she can get on with the evidence.
The opportunity to shape the case for the judge as the seventh juror and to predispose him or her to the right conclusion on the threshold, before the evidence is heard and before the defence says a word, is too important to miss. It is the single most important of these strategies. I have experienced the impact of a good jury opening on the trial judge. I have listened to trial judges in chambers on the second or third day of a trial speaking to defence counsel about the likely result in the case before the evidence is led. I have heard judges charge juries using language which has been borrowed from the opening.
Openings influence judges. We should not be the least bit surprised because the rule of primacy is just as applicable to the seventh juror as it is to the other six. So when you speak to the jury in your opening, make eye contact with the trial judge from time to time. Include the trial judge in the common quest for fairness for your deserving client. Take advantage of all the techniques used by effective plaintiff’s lawyers to influence juries in order that the judge wants to help your client.
(b) Make and Keep Liability an Issue
Use the opportunity of the opening to the jury to predispose the trial judge to right a wrong. The most effective way to do that is to speak to the judge through the jury of the injustice of the case, the innocence of the plaintiff and the wrongdoing of the defendant. Dramatize the accident in your opening by telling the jury a story and painting a picture. Speak to the jury, and of course the trial judge, in the present tense. The following is a portion of a jury opening in a recent fibromyalgia case, which illustrates the technique. (The plaintiff suffered from fibromyalgia. She was rear-ended and the defence denied liability. In all, including interest the jury awarded over $800,000.)
Picture yourself with Julie on that day. Friday, July 22, 1988 started out like a perfect summer day. It was very hot and sunny. So Julie decides that she’ll settle the kids into the family car and go to visit Carl and have lunch with him where he was working. Julie makes a lunch and packs it into the car. Julie leaves home at about 11:45 and meets Carl at about noon. Carl and Julie eat the sandwiches she has made and feed the kids. There are bushes laden with raspberries on the property where Carl is working and the owner tells them to help themselves. So Julie, Carl and the kids pick 6 boxes of raspberries so Julie can make some pies. Carl helps Julie put the kids back into the car and sends her on her way at about 1 o’clock. Little does he know that that moment is the last time he will see his wife as he has known her and that their lives are about to change forever.
Julie travels along Cundles West and travels through Bayfield Street on a green light. She has to stop behind a row of cars that are waiting to turn left into a plaza. As Julie sits waiting patiently for the way ahead to clear she is struck violently from behind by the defendant. The raspberries are thrown out of the boxes and fly around inside the car.
We’ll learn that the defendant had just been to BNR Rentals out on Highway 90, at the west end of the city and was on his way back to a job site. The defendant had picked up an asphalt roller which was in the back of the truck. The defendant was only 8 feet behind Julie’s car when the defendant noticed her brake lights. He slammed on his brakes, but was too close and skidded into the back of Julie’s car.
Because the bumper of the truck was higher than the bumper of Julie’s car, it kinked the back door in and buckled the side fenders and pinched one of the back doors so it wouldn’t open. The impact was so severe that the seat in which Julie was sitting was ripped from its moorings on the floor. The seat was forced back so far that Julie had trouble reaching the brake to stop the car after the crash. The frame was bent. The car was written off.
At the end of the trial you’ll be asked to answer some questions, one of which will be whether the collision was the defendant’s fault. The defendant has taken the position that the collision was caused by Julie and has refused to accept responsibility for the collision. You will ask yourself why if the defendant denies responsibility he would plead guilty to a charge of careless driving.
I am not sure what evidence the defendant will bring to you, but we’ll hear from Julie that she was wearing her seatbelt when she was struck by the defendant. In spite of that the defendant has taken the position that Julie contributed to her injuries by not wearing her belt. If the defendant persists in this position, you may also be asked to answer a question about it, but I know of no evidence whatsoever which will support the defendant’s contention.
Julie and her family are depending on you and me to each do our part. It is my obligation to present the case to you fairly and courteously and as clearly as I can. It is your obligation and yours alone after hearing the evidence to determine who is at fault for the collision of Friday, July 22, 1988 and what compensation Julie and her family deserve. You alone have the power to make these determinations, to give fairness to Julie and her family and to give them justice.
Strategy #5: Anchoring and the Use of Demonstrative Evidence
Whether your client’s action has to do with a mild head injury or chronic pain, the problem is the same. The problem is that without an injury to look at, such as on an x-ray, the intellect can not grasp that a physical injury has occurred. Some of the healthiest looking clients I have acted for have been totally and permanently disabled. After acting for them for years I experience the same surge of disbelief when I greet them in the waiting room. It is hard for us to believe what we do not understand, and hard for us to understand that an injury exists when we can not see it. This strategy is designed to overcome this phenomenon.
The solution is the use of demonstrative evidence and in particular the use of as many different forms of demonstrative evidence that you can possibly think of. Use it in its different forms during the jury opening and during the evidence as often as you possibly can. The more the jury and the judge visualize the body parts involved the more likely it is the injury will be perceived as physical. You must get the trier’s mind off the pain and onto the body parts where the pain comes from.
You might say to the jury in your opening:
“John’s pain right after the crash was in his neck. This model of a spine will be described very shortly by John’s family doctor, Dr. Zeuss. We’ll learn from him that the pain was in the area of the vertebrae called C-6 and C-7. If you reach round to the top of your shoulders and feel your spine, you are feeling bones just like the model we’re looking at. We’ll also learn from Dr. Knowit that 3 months ago when John came to see her that John was still describing pain from his neck. And where was that pain? Right here at C-6 and C-7. Here is the spot again on this diagram which, with your Honour’s permission, we see on the wall thanks to the overhead projector. Here is another overhead which will become evidence when Dr. Zeuss explains it to us. You see the ligaments and muscles around C-6 and C-7. Dr. Zeuss will tell us that it is in the area of these ligaments and muscles that the pain is located.”
You should consider the use of a positive from an X-ray even if there are no bony abnormalities, so that a medical expert can describe the source of the pain on the plaintiff’s X-ray. Use diagrams on an overhead projector, medical legal illustrations and slides. Every chance you get with each and every medical witness, pick up the model of the spine, turn on the slide projector or use the overhead projector. Why? Because you want to imprint those physical images of the bones and soft tissues of the spine into the consciousness of the judge. If you are seen as explaining the injury to the jury the judge will listen with interest, but if there is no jury the judge will start to lose patience much sooner. It is not impossible, but it will be much more difficult to re-enforce visualization without the jury.
This strategy will only work if the visualization takes place over and over again. This technique is known as anchoring. Anchoring is the repeated use of a physical behaviour or demonstration in constant association with a concept you wish to enforce. Your ultimate objective is to cause the judge’s mind to associate a physical visual image, the vertebrae, discs and soft tissues of the spine, with any mention of your client’s pain and impairment.
The anchoring of the chronic pain to the visualization can be taken one step further by anchoring both to a particular body gesture at the precise same spot in the court room. This sounds far-fetched at first, but when you understand it, it is quite simple. For example, if on each of 50 occasions when a visual of the spine is presented, you reach out with both palms turned up in an appealing fashion and ask the witness to confirm that the source of the chronic pain is physical, what is the judge and jury going to think of when you make the same gesture in your closing? A “thumbs up” gesture is anchored to an expression of good luck and success, so that the words are unnecessary. My generation seldom uses the V-for-Victory gesture made by our index and middle fingers because it is anchored for all of us with Richard Nixon getting aboard U.S.-1 for the last time in disgrace.
Strategy #6: Increase Acceptability by Explaining the Mechanism of the Injury
This strategy is different than the strategy of anchoring, but you will often employ it through the use of demonstrative evidence. Picture if you will an orthopaedic surgeon who is pointing with a laser pointer at a colourful slide about 8 feet square which illustrates the parts of the spine. The judge and jury will be fascinated because we all love colour, we all love to learn and it is a pleasant break from the monotony of the trial. Then the surgeon calls up the next slide. It illustrates the motion of the head and neck in a rear-end collision. As the judge and jury visualize the body parts and achieve an understanding of the mechanism of injury they will become more accepting of and indeed will expect that a physically injury has occurred. Then the next slide shows the physical damage to your client’s car, and the surgeon confirms that indeed this is just the kind of crash in which the forces will cause the movement described in the earlier slide and the physical injury he or she is describing.
If you have the opportunity to repeat this series of visual images with a number of witness those images of the mechanism of physical injury will be both understood and anchored to the concepts of pain and disability in the mind of the judge and the jury.
An article entitled “The Pathophysiology of Whiplash”6 contains an excellent review of the mechanism of whiplash injury. The authors explain that in collisions the neck is subject to the rotational forces in flexion, extension, and lateral flexion as well as shear forces parallel to the direction of impact. Their review provides convincing explanations for physical injury. For example, forced extension applies compressive forces to posterior structures and tensile forces to anterior structures. The anterior structures said to be at risk are the esophagus, anterior longitudinal ligament, anterior cervical muscles, odontoid process and the intervertebral disc. The authors explain that forcing the neck further into extension in some circumstances must cause certain injuries by stretching soft tissues beyond their elastic limit by causing tears of the muscles, ligaments or discs and so on. As a further example, the authors explain how flexion will stress ligaments and how lateral flexion and shear forces necessitate different damage. If the trier understands how, it will be more likely he or she will accept that a physical injury is the cause of the pain.
Strategy #7: Foreclose an Emotional Explanation
There is no way in the absence of radiographic evidence to offer 100% proof that the plaintiff’s chronic pain is physical. If you can not prove it is physical, try to prove that is very improbable that there is an emotional explanation for the pain.
You will want to lead the following evidence:
- there is no pre-morbid history of significant emotional problems and psychosomatic complaints;
- the post-traumatic history is consistent with a long period of physical complaints before any emotional complaints emerged, as they will eventually in most cases of chronic pain;
- there have been no extraordinary stressors in the plaintiff’s life since the collision;
- the plaintiff has demonstrated emotional control by appropriate behaviour since the collision, including the appropriate use of medication and therapy and appropriate interaction with professionals and insurance personnel;
- the plaintiff’s behaviour since the collision has been consistent with a genuine desire to return to normal function.
Because the defence will try to enhance the plaintiff’s emotional response, you will have to be ready to prove that it was a response to the pain and not the other way round. The literature on the subject of the emotional response to chronic pain can be very useful in cross-examination. The following extracts from the writing of a British psychiatrist who is a consultant in a pain clinic speak volumes:
“Sufferers with chronic pain have a severe handicap to bear. Chronic pain is demoralizing and debilitating and it is not surprising that in this condition almost half of patients with chronic pain attending pain relief clinics have measurable psychiatric symptoms, mainly those of depression….”7
“In particular, chronic unremitting pain with little or no possibility of release must be one of the most distressing experiences known to man. The experience of pain dominates all waking life, it interferes with thinking and prevents all but the most simple of constructive activities. It disturbs sleep, impairs appetite, affects morale and may disorganize the functioning of every part of the body.”8
In the fibromyalgia case I mentioned earlier I tried to bring the pain to life for the judge and the jury with the following plea:
First, pain and suffering. We cannot feel another person’s pain. We cannot know Julie’s pain even though we struggle to describe it. We can fight pain, but it always wins. Pain never sleeps. Pain has no sympathy. Pain is cruel, confining and constant. Pain turns beauty into ugliness, hope into longing, and pleasure into despair. Pain frightens us all. Pain deprives children of their mother. Pain distances a husband from his wife. Pain brings sorrow to a loving father.And Julie Brandon didn’t ask for pain. As she left Carl at lunchtime heading for home with her children and fresh raspberries to make pies, she must have thought that life is wonderful. And it was: she had 4 children and a 5th on the way. She loved her life, attending to Carl and her children, and enjoying her pastimes. But no one would change places with her now. She has lost all that. Pain took it away from her. Pain that will remain with her, sneer at her, and sap her energy for the rest of her life. And she is only 38 years old.
And what of the loss of enjoyment of life? Think of the things that mean the most to you? Is it watching a sunrise with a cup of coffee? Is it picking up your child or grandchild? Is it physical intimacy with your partner? Is it taking your dog for a walk on a beautiful fall day? Whatever it is, imagine it with pain? Imagine giving it all up because coping with pain takes all your energies away. Just imagine. Then ask yourself what fairness demands you award Julie for such a loss?
After such a closing, what appeal will there be to a defence argument that the pain has an emotional cause?
Strategy #8: Lead Common Sense evidence to Lead to the Inference that the Injury is Physical
Certain types of evidence will appeal to the trier’s common sense and lead to the inference that the injury is physical. If possible, you will want to lead the following evidence in this category:
- the pain was present immediately following the trauma;
- the plaintiff consistently described pain from the same general area of the body, (the more defined the better);
- the pain was continuous (with explainable periods of remission and exacerbation) from the time of the trauma to the date of trial;
- the plaintiff has experienced consistent impairment of function;
- the plaintiff’s pain responds to medication;
- health care providers have identified muscle spasms;
- chiropractors, physiotherapists, massage therapists, and acupuncturists have ameliorated pain and improved function by physical therapy.
Strategy #9: Lead Evidence of Objective Tests and their Reliability for Confirming Physical Injury
Evidence of objective testing and their reliability in clinical practice is very persuasive that chronic pain has a physical cause. You should have this information available to put to witnesses in cross-examination and so that it can be endorsed by your own experts. A good expert will describe the tests for you, or you can obtain it from the literature on the various types of chronic pain.
For example, The Handbook of Pain Assessment9 contains a useful chapter describing the clinical assessment of low back pain. The authors speak to the reliability of the assessment and expresses the objective as follows:
“The aim of assessing physical impairment is to provide objective medical evidence of impairment that is reliable, is distinguishable from nonorganic and behavioral features…”
The clinical examination for chronic low back pain described in this handbook includes measurement of:
- lumbar extension;
- lateral lumbar flexion;
- straight leg raising;
- bilateral active straight leg raising.
Each medical witness you call should be asked to review the difference between subjective symptoms and objective signs and asked to describe the objective signs noted on clinical examination. To ensure the judge does not miss it you might always begin the question the same way with: “Doctor, since it may be important if the defence brings a threshold motion in this case, may I ask you about any objective testing you carried out?” If the evidence from doctor to doctor is of reasonably consistent signs on clinical examination, subject of course to expectable fluctuations between good days and bad days, the diagnosis of physical injury becomes more acceptable. It is compelling to have the treating physicians testify that the diagnosis was necessary for choosing appropriate treatment, not for the esoteric purposes of the threshold.
(Q: “Doctor, why did you perform these tests?” “A: Because I needed to know if I was treating a physical or emotional injury. Anti-inflammatory drugs, for example, would be inappropriate for depression and somatic pain.” Q: Doctor, as you performed those tests over the last several years was the issue of the threshold ever on your mind?” A: “I was treating the poor man, that’s all, I leave the legal issues to the lawyers.”)
I mentioned at the outset of this article that each cervical nerve root supplies impulses to a specific area of the body along a path that is known as a dermatome. If on clinical examination the plaintiff shows a definite pattern of sensory loss which corresponds to the dermatome of the affected nerve root and the site of the plaintiff’s pain, then physical causation will be much more easily established. Sometimes there are medical explanations for apparent variations which must be provided to foreclose defense arguments.
You will need to research, understand and develop evidence of the unique objective tests used for identified forms of chronic pain such as fibromyalgia. Here again, like demonstrative evidence, the more the judge understands the clinical testing procedures and their reliability the more likely it is that they will be in his or her mind when the issue of chronic pain and its cause is considered.
Strategy #10: Use the latest Medical Literature to Prove the Multi-Factorial Nature of Chronic Pain
There is an abundance of medical literature on this topic. A search conducted for me by Medical Information Service on the etiology of chronic pain syndrome produced over 60 pages of summaries of the latest literature on the subject. There are literally hundreds of articles which could either be used to bolster the opinions of your own experts or used in cross-examination to attack the opinions of defence experts. The price of such a search is only $140. MIS searches Medline, the medical literature equivalent of Quicklaw. You can search Medline yourself through medical school libraries or on Internet.
For example, the authors of “The Physiology of Whiplash” note that although ligamentous injuries cannot be diagnosed clinically, studies of animals have confirmed tears of the anterior longitudinal ligament. They site other studies concerning injury to other parts of the body in support of the proposition that there is much physical injury which cannot be clinically diagnosed but which is nevertheless real.10
The authors describe studies which speak to the permanence of whiplash injuries in 10% of whiplash victims. Further studies have found that patients destined to recover will do so in the first 2 or 3 months after injury and that patients with persisting symptoms after 2 years suffer indefinitely.11 Citing these studies through your own experts and having them acknowledged by the defence experts will educate the trier that the leading edge of medical science acknowledges that a substantial proportion of whiplash injuries are permanent and result in chronic pain.
Nothing is more powerful than an article for use on cross-examination which has been written by one of the defence experts. All you need is a statement by the expert acknowledging that these injuries are multi-factorial to give the court something upon which to hang its hat. Like Quicklaw, a Medline search can be conducted using the expert’s name, so that his or her writings are easily found.
Picture a cross-examination in which leading article after leading article suggests sophisticated physical explanations for the phenomenon of chronic pain. For example, one such article concludes that there are changes in the nervous system, particularly concerning damaged neural elements, which is of paramount importance in understanding the cause of chronic pain.12
It is effective to ask a defence expert if he or she keeps up with and is familiar with the literature on an issue. The expert will be loathe to say no, so when you ask if the witness is familiar with a particular article he or she is on the horns of a dilemma. Either the witness has to admit not being aware of the article, or concedes that he or she has read it in a journal which he or she follows.
Even if the expert denies familiarity with or refuses to accept the conclusions in the articles you present, you will continue to put article after article to the expert. After presenting a number of articles, all written in the last few years and published in mainstream journals, the expert will at least admit that the causes of chronic pain are not well understood, that there is intense debate in the medical community and that opinions exist among respected colleagues which differ from those held by the witness. Your objective in this line of cross-examination is an admission that modern medical science is still uncertain about the origins or chronic pain; it could be physical, it could be psychological, but it is probably multi-factorial. You seek admissions that treating physicians are in the best position to make this determination, which after all is a matter of judgement. The icing on the cake is an admission that the either/or, physical or emotional language of the threshold makes no sense in relation to modern medical science.
Your own search with respect to the particular variety of chronic pain your client is suffering will produce the leading edge research you will need to succeed. The search I conducted for this article concerned only chronic pain, and some of the conclusions supported by the literature is as follows.
According to an Australian study, central nervous connections between the trigeminal nucleus and upper cervical sensory input provide an explanation for some forms of headache and facial pain. Similar lesions are seen in the cervical spines of those who die immediately and survivors who die some years after a neck injury, from unrelated causes. Both discs and facet joints are injured. The common disc injury is a “rim lesion” or transverse tear near the anterior vertebral rim. It is caused by distraction and shearing in sudden extension. Both the posterior disc and the facets are compressed, causing disc contusion or herniation, facet haemarthrosis, bruising around the C2 nerve, or fractures of articular processes. Suboccipital vascular congestion and annulus calcification are also seen in the survivors. Chronic pain develops in 20-40% of the survivors according to this study, and the reasons include altered spinal mechanics, neural damage and vascular changes.13
One very recent retrospective and prospective study in England on 22 cases of persistent pain after trauma to the head and neck concludes that these cases should be divided into musculoskeletal, vascular and neuropathic.14
A 1994 paper from Germany concludes that chronic lumbosacral pain of apparently unknown origin is frequently caused by muscular trigger points in the muscles of the trunk.15
A Belgian article in 1992 notes that the experience of chronic pain is the result of at least three interactive neuro-psychological determinants viz. the sensory-discriminative, the affective-motivational and the cognitive-evaluative symptoms.16
An American article in 1992 postulates that the nervous system changes its activities in response to chronic pain, particularly that arising from damaged neural elements, and that this fact is of paramount importance in understanding how chronic pain syndromes differ so greatly from simple nociceptive events.17
Evidence concerning the anatomy of pain can be immensely useful in cross-examination to enhance your own credibility in the eyes of the trier and to demonstrate that the expert really knows very little about it. The sensory units involved in detecting the stimuli for the experience of pain are called nociceptors (i.e. noxious sensation receptors). All nerves consist of neurones or nerve cells that have long filaments called axons. Nociceptors are a specialized form of nerve cell that are found in all parts of the body but which are particularly concentrated in…areas of the body that are exposed to possible injury. Nerve fibres are designated from A to D according to their speed of conducting pain. A chemical substance, caused a neurotransmitter is released from the nerve’s terminal in the vicinity of a target neurone. This binds to receptors on the nerve membrane and so excites or inhibits the target neurone. The structural specializations associated with this process are called synapses. This is just a beginning of the complex explanation of the process of experiencing and transmitting pain to the brain.18
An English study in 1993 of 250 patients, some of whom had myofascial pain and some of whom had herniated discs, reaches some remarkable conclusions. It concludes that patients suffering from myofascial pain are significantly less likely to report periods of pain relief than patients with herniated discs. Patients who underwent previous surgery do not differ significantly from those who never underwent surgery. The researchers concludes that the effects of low back pain of myofascial origin have comparable, if not worse, consequences than disc herniation.19
One comprehensive review by a neurologist in Houston, Texas concludes the following:
- there are 1 million whiplash injuries a year in the U.S.;
- proper adjustment of head rests would reduce the incidence of whiplash injury by 24%;
- persistent neck pain is more common in women by a ratio of 70:30;
- chronic neck pain is reported by more than 30% of those injured;
- risk factors for chronic pain include older age, the presence of interscapular back pain, occipital headache, multiple symptoms or paresthesias, reduced range of movement of the cervical spine, the presence of an objective neurologic deficit, pre-existing degenerative changes; and the upper middle occupational category;
- there is minimal association of a poor prognosis with the speed or severity of the collision and the extent of damage;
- most patients are not “cured” after they receive compensation.20
The available literature on the subject is vast and international. Faced with an effective cross-examination a defence expert will have to admit, at a minimum, that the search for a complete understanding of chronic pain continues around the world and that many respected researchers believe the source of chronic pain is physical or multi-factorial. The vast majority of the orthopaedic surgeons who are the forensic regulars offer simplistic explanations for their opinions, or none at all, and will be overwhelmed by an exhaustive cross-examination on the recent literature. On the other hand, if you take your own experts through a review of the literature they will appear to be all the more credible.
Strategy #11: Debunk the Litigation/Compensation Neurosis Argument
It is very common for defence psychiatrists and even some orthopods to trot out secondary gain, compensation neurosis or litigation neurosis as an explanation for chronic pain. It is a powerful weapon for a defence psychiatrist, because you cannot disprove the truth of the assertion and because it feeds into the belief system of some jurors and some judges that the plaintiff is “just in it for the money”.
Numerous studies have been done which confirm that the likelihood of symptoms following whiplash injury is independent of litigation. Dr. G. Mendleson, an Australian psychiatrist who is a consultant in chronic pain, reviews these studies. Gore and Sepic (1984) evaluated the results of cervical disc fusion in a group of 146 patients, and found no significant correlation between presence or absence of litigation and improvement following surgery. Cathlove and Cohen (1983) compared 20 patients claiming compensation and 27 who were not, and no significant difference between the two groups was found. Dworkin (1985) studied 454 chronic pain patients in relation to employment and compensation in relation to outcome, and concluded that only employment, not compensation, was statistically significant as a predictor of long-term outcome. In a study by Mendelson (1984) 80 patients with chronic low back pain were studied. The study failed to demonstrate any difference in either the severity or the characteristics of low back pain in the “compensation” group and the “no compensation ” group. Most interestingly, Melzack, Katz and Jeans (1985) followed 145 patients with chronic pain. They found that contrary to the common notion of pain exaggeration by litigants, those involved in litigation described the pain as less severe, when compared with the group not involved in litigation.
You must use these studies in direct with your own experts and in cross-examination of any experts, especially psychiatrists or neuropsychiatrists who opine that the plaintiff’s claims of injury are consciously or unconsciously feigned to obtain compensation. Regardless of what defence experts might suggest, you cannot take the risk that the judge privately holds this view. It is wise to lead this evidence as part of your case through your own experts to ensure that any bias the judge might have is eliminated.
Strategy #12: Call the Right Experts and Effective Lay Witnesses (a) The Lay Witnesses
The best witnesses in these cases, in fact in all injury cases, are not the experts. They are good, ordinary, believable lay folk who are independent of your client and your client’s family. It is these witnesses who determine the outcome in most of these cases because it is they who give the judge and jury the clue to which side’s experts to believe and pre-dispose the judge and jury to either like or dislike the plaintiff. (Birds of a feather flock together. You can judge a person by his friends. If he has children like that he must be quite a father, etc.)
I like to start with a long list of proposed witnesses. By the time my law clerk has finished we will whittle the list down to 5 or 6 people who will distinguish themselves as witnesses. You want witnesses who are likeable. You want witnesses who can understand the theory of the case and its issues. You want witnesses who can express themselves and will be comfortable testifying. You want witnesses who want to help your client. You want witnesses who can tell stories which prove your case. Witnesses like church ministers, employers, and professionals have built-in credibility.
Lay witnesses can lead invaluable evidence about the plaintiff as someone who would never want to stay injured, who has tried hard to recover, but who has been beaten by pain. You lead evidence through them about the plaintiff’s lifestyle, work ethic, personality, and so on. You lead evidence through them comparing these behaviours and qualities after the collision, as well as evidence of observations of pain being experienced and of the plaintiff’s decline over time. Ask each witness the same questions in the same order, so that the trier gets the message that if you called a hundred witnesses the answers would be the same. I like to wait for the right moment in a trial and then start calling these people one after another, leading their evidence quickly, and allowing no time between the end of one witness and the beginning of the next. Through this evidence, called in this fashion, you can establish a persuasiveness, a rhythm and a momentum from which it is hard for the defence to recover.
(b) The Experts Expert witnesses must include the family doctor. The family doctor and the rehabilitation counsellor, if there is one, give crucial evidence of continuity, consistency and believability. They must be meticulously prepared with respect to both the plaintiff’s pre-morbid and post-traumatic health. They often need help with the literature in their own field. Your objective in preparing these physicians is to make them comfortable believers in the theory of your case who will not yield. They will be effective if they are aware of the pre-morbid profile, if they understand fully the course since the trauma occurred and if they feel they will not be tripped up by the literature or the opinions of others.
The experts will also include an orthopaedic surgeon, neurologist or rheumatologist. Unless you can find an orthopaedic surgeon with a special interest in chronic pain you will find that neurologists and rheumatologist are more helpful. Many orthopods rule out organic pathology because they find no orthopaedic injury. You get the diagnosis which specialists are trained to give. For this reason, neurologists and rheumatologists who have an interest in chronic pain are much more likely to be sensitive to soft tissue pathology. Remember that all of these specialists hold the self-centred view that their specialty alone is qualified to diagnosis in the area, but to a judge they are all just doctors.
Another must for such a case is a psychiatrist who has a special interest in chronic pain. Because he or she is a medical doctor the right psychiatrist can speak very knowledgeably of the physical processes. Psychiatrists will speak to the multi-factorial reality of chronic pain and the interaction of the mind and the body in a way which makes the either-or simplicity of the threshold seem ridiculous. A good psychiatrist will admit that of course there is emotional overlay, what else would you expect when serious pain never quits, but will explain that the overlay is a response to pain and not the other way round. Some physiatrists can perform this same role.
You cannot try a modern personal injury case, with its emphasis on the effect of an impairment, without an occupational therapist. Make use of the occupational therapist in the context of proving that chronic pain has a physical cause by emphasizing the physical effects of the injury. Even if the physical origin of the injury can not be demonstrated, you can lead evidence of a vast array of physical limitations. It is not logical to conclude that because the effect is physical, so must be the cause, but that is nevertheless how the mind works.
Above all, try to find experts who do not make their living in the courts. I marvel that some experts are believed at all, because they have no practice except for medical-legal assessments and their incomes are scandalous. “Doctor, do you have any patients in between your court appearances?”
Strategy #13: Sound Examination and Cross-Examination of Experts
Develop a standard set of questions for your own experts and another for cross-examination of the defence experts. Many good articles have been written on this subject, but the following suggestions may be useful when you must prove that chronic pain is physical.
(a) Treating Physicians
- Are the symptoms consistent with the mechanism of the collision?
- Do you know of any other cause of the symptoms?
- Did you ever see any behaviour or make any clinical observation that was inconsistent with the complaints and your diagnosis?
- Did you ever make any observation to cause you to doubt the sincerity of the plaintiff?
- (a) Did you ever make any diagnosis of emotional illness or condition? (b) Were the emotional difficulties experienced by the plaintiff the result of the chronic pain state? (and not the other way round)
- Did you ever make a referral of the plaintiff for treatment of any emotional condition? If so was it after the patient’s physical injury and pain was chronic?
- If EMG studies, MRI studies, CT Scans or X-rays were negative, do they cause you to alter your diagnosis?
- Are the objective tests you performed reliable in determining physical injury?
- What advantage do you have as a treating physician over a physician who saw the plaintiff once for medical-legal assessment?
- What explanations are there for disagreement among doctors in this area?
- Why did you prescribe medication which is designed to reduce inflammation/relax muscles?
- Why did you prescribe physical therapy?
(b) Cross Examination of Defence Doctors
- Cross examine on bias and nature of practice.
- Identify information not available to doctor which the court has heard. Confirm it could make a difference to diagnosis.
- Seek confirmation that chronic pain can have a physical cause.
- Seek confirmation that the only way to definitively rule out physical injury is by surgical and perhaps microscopic examination and that clinically undiagnosed injury has been found on autopsy in these patients.
- Seek acknowledgement that when soft tissues are stretched they heal by laying down permanent scar tissue, which almost certainly occurred in your case and which is of course physical.
- Seek acknowledgement that chronic pain is almost always multi-factorial and whether the emotions or a physical injury is the predominant factor they are both present and the determination is a matter of judgement.
- Cross-examine on medical literature, or seek acknowledgement that the diagnosis of chronic pain is a matter of judgement, that doctors often differ in their opinions, and that there is much that modern medical science has yet to learn on the subject.
- Cross-examine on maladies which are commonly acknowledged to be physical yet can not be radiographically demonstrated: headache, toothache, bursitis, tennis elbow, etc.
- Seek confirmation that the expert, in fact all physicians and surgeons, diagnose physical injury and even treat on basis of the patient’s complaints of pain, and that surgery often cures the pain. If an orthopaedic surgeon will not admit he or she will initiate surgery on the basis of such complaints, you will at least obtain an admission that he or she will undertake invasive testing.
- Obtain acknowledgement that each of plaintiff’s doctors are respected colleagues.
There are many chronic pain cases making their way through our court system. Some will be abandoned. You will take comfort as you review the contradictory reasons for judgement in these cases from the realization that the results were determined by the evidence, not the law.
It is all in the facts, and the facts are determined by the evidence and how it is perceived by the trial. The evidence and that perception is up to you.
- “Chronic Pain Syndrome: Identification and Management”, David Corey, Ph.D., 9 The Advocates’ Quarterly, (1988) p. 223
- Supra. p. 223
- The Verdict, BCTLA, December94, p.35
- Supra, p.40
- “The Cervical Acceleration Deceleration Syndrome”, Foreman & Croft, Williams & Wilkins, 1988
- “The Pathophysiology of Whiplash”, Barnsley, Lord & Bogduk, Spine Vol. 7, No. 3, 1993 p. 329
- “Preface”, Tyrer, Psychology, Psychiatry and Chronic Pain, Butterworth Heinemann, 1992
- “Basic concepts of pain”, Tyrer, Psychology, Psychiatry and Chronic Pain, Butterworth Heinemann, 1992, p.3
- “Clinical Assessment of Low Back Pain”, Waddell and Turk, Handbook of Pain Assessment, 1992, The Gilford Press, p.15
- Supra 8, p. 335
- Supra 8, p. 346
- “A Taxonomy of Chronic Pain Syndromes”, H. LaRocca, Spine Vol. 17, No. 10S, 1992
- “Acute injury of the neck: anatomical and pathological basis of pain”, Taylor & Finch, Ann Acad Med Singapore (SINGAPORE) March, 1993, 22 (2) p. 187-92
- “Diagnosis and treatment of persistent pain after trauma to the head and neck”, Benoliel, Eliav, Elishoov and Sharav, J. Oral Maxillofac Surg (UNITED STATES), November, 1994, 52 (11) p. 1138-47
- “Manuelle Triggerpunktbehandlung bei chronischer Lumbosakralgie” [“Manual trigger point treatment in chronic lumbosacral pain”], Dejung, Schweiz Med Wochenschr Suppl (SWITZERLAND), 1994, 62 p. 82-7
- “Evaluation d’un syndrome douloureux chronique” [“Evaluation of a chronic pain syndrome”], Plaghki, Acta Stomatol Beig (BELGIUM), September, 1992, 89 (3) p. 181-9
- Supra 14, pS. 344-55
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